Ballot change favors Berger
By Steve Herring
Published in News on August 10, 2016 1:46 PM
A provision tucked inside an elections bill approved during the waning day of the just-completed legislative session favors the son of the state Senate president pro tempore who is a candidate for the state Court of Appeals.
The office is the only one singled out in the bill that changes how the order of candidates is determined on the ballot.
The stage was set for the change last year when the legislature made the office partisan.
Under state law, the state Board of Elections uses a formula to randomly select the order of names in nonpartisan races. That would have been incumbent Court of Appeals Judge Linda Stephens, who is seeking re-election in November.
The new law signed by Republican Gov. Pat McCrory earlier this month now gives the top spot to the candidate of the party of the sitting governor.
In this case that it is McCrory, meaning that Ms. Stephen's opponent, Phil Berger Jr., the son of state Senate President Pro Tem Phil Berger, will be listed first on the November ballot.
According to the General Assembly website, Berger voted for the bill.
Ms. Stephens, who has been on the bench since 2006, said she had been out of town and not aware of the law until contacted by a reporter. Ms. Stephens said she also has been questioned about the law during campaign events. Many of the ones she has spoken to are lawyer groups, she said.
Lawyers have a more acute understanding about changes relating to the election of judges in the state simply because they are lawyers, she said.
To a person they have called the legislation "ridiculous, unfair, petty, blatant nepotism," she said.
People in public positions in general strive not only to try to do the right thing, and make reasoned judgments, but also not to do anything that would give constituents reason to think that they have an unfair agenda, she said.
"Even if it wasn't somebody's attempt to give my opponent the advantage, that's the way it looks," she said.
Berger's office was contacted for comment.
"The bill originated in the House of Representatives and the Senate concurred, so your questions would be best directed to the House," said Amy Auth, a spokesman for Berger. "I understand that the ballot order for Court of Appeals races will be the same as for all other partisan races.
"The changes in ballot order applied to every Court of Appeals race and brought them in line with other races where the party of candidate is known."
Because the bill treated all Court of Appeals races the same, there was no need for a recusal, she said.
"I can tell you if I had been in that situation, I would have recused myself," Ms. Stephens said. "If any of the issues involving voting in this year's election came before the Court of Appeals at whatever level -- whether it was preliminarily or on the merits of the cases -- I would recuse myself."
Ms. Stephens said she also felt certain other Court of Appeals judges up for election would rescue themselves as well.
"I am not going to say what I think Mr. Berger should have done," she said. "I am just going to tell you what I would have done if I had been in those circumstances.
"In more than one instance recently, we have heard legislators say, 'Well, I didn't know that was in that bill.' So, I guess it is possible Mr. Berger didn't know that provision was in there. But again, I can't speak for him."
The House Committee on Rules, Calendar and Operations of the House was responsible for rewriting what had been an insurance bill and turning it into an elections omnibus revision bill.
When a member files a bill, the bill becomes the property of the chamber body to do with as it sees fit, and it is not at all uncommon to have a bill filed as one thing only to pass as another, committee Chairman Rep. David Lewis said.
Whether through the adoption of a proposed committee substitute or by removing the content and offering an amendment there were several dozen bills that were rewritten during this most recent session, he said.
The content of, or need seeking to be addressed by original language of both House Bill 361 and Senate Bill 667 (dealing with insurance), became law when House Bill 361 was passed and signed by McCrory on Oct. 22, 2015, Lewis said.
This means the Senate version bill in its original form was no longer needed for its original purpose as that purpose had been satisfied by House Bill 361, he said.
Lewis said he chose to use Senate Bill 667 for a different purpose, a common practice, especially toward the end of session.
As far as the new or different subject matter is concerned, it is worth noting that the bill was presented and debated in the House Elections Committee where the members had the opportunity to ask questions as well as offer any amendments, Lewis said.
"Speaking specifically to the Court of Appeals races, at no point was any specific judicial candidate's name mentioned, to include ß. Berger's son, as there was no need to consider any candidate by name as they would all be treated the same under this provision," he said. "Furthermore, everyone who I spoke with already thought that the Court of Appeals races, since the political party of the candidate would appear on the ballots, would appear in order by the party of the sitting governor first.
"It was our intent to make this change when we changed all other races where the party of the candidate appears on the ballot to list the candidate of the same political party as the governor first. So, the real and actual impact of this law is Court of Appeals races are now treated like every other race where the party affiliation is known."
There are many legislators in both chambers who believe that making all judicial races partisan would go a long way toward providing the public with at least some background as to who they are voting for in these races, he said.
Ms. Stephens disagreed saying that all judges are sworn to uphold the law.
That is particularly true for the Court of Appeals since it is not a fact-finding court. Rather it is an error-correcting court, which means it just looks to see whether a prejudicial error was committed in the trial court requiring a new trial or requiring another fix in the trial court.
The court does not make policy or overrule precedent, she said.
"I will be the first to admit that I don't always find it is easy to discern what is going on at the legislature," Ms. Stephens said. "To some extent that, for me as a judge, is job security, because we get called upon on a regular basis to interpret ambiguous statutes.
"It makes no sense to me why just for the Court of Appeals, which is now identified by partisan labels, the legislature found it necessary to pass a statewide law to determine placement of names on ballots when that impacts what the state Board of Elections' random formula would have done at least in my race."
Ms. Stephens said she did not know about possible impacts in other races.
Court of Appeals judges serve eight-year terms and are elected in what until last year were non-partisan elections.
Ms. Stephens said it was her understanding that her name came out on top under the formula used by the state Board of Elections.
That was not because she is the incumbent, female or for any other reason other than that was the way the formula had worked out, she said.
"I know the research, and I imagine that the folks in the legislature are aware of the research that has shown that particularly the down ballot races -- and we will still be at the bottom of the ballot -- name placement can have a significant impact," she said.
"It looks to me like it was very deliberately done, but nobody talked to me about it so that is just supposition on my part."
Ms. Stephens said she will continue to campaign on her record and many years of experience. Ms. Stephens she is happy to put her record up against anything thrown at her to unseat her -- a record of more than just being a judge for the past decade.
Last year she received the highest honor bestowed by the association that represents the civil defense bar. This year the N.C. Advocates for Justice, who represent the opposite side of those civil disputes, presented her its Outstanding Appellate Judge Award.
"I think that is a record itself that speaks volumes about my ability to do what I promised in my oath of office to do," she said.